Miller, R v [2010] EWCA Crim 809

Case No 200906939/A6[2010] EWCA Crim 809
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 25th March 2010
Strand
London, WC2A 2LL
B e f o r e:
MR JUSTICE WALKER
MR JUSTICE NICOL
Between
R E G I N ACrownv
Between
GARY MILLER
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr A Greenwood appeared for AppellantMiss R Knight appeared for Crown
J U D G M E N T
[1]MR JUSTICE WALKER: On 17 November 2009 the appellant was committed for trial by Merthyr Tydfil Magistrates' Court on charges of burglary and going equipped for burglary. The plea and case management hearing took place in the Crown Court at Merthyr Tydfil before His Honour Judge Curran on 11 December 2009. The appellant pleaded guilty to count 1 of the indictment. That count alleged burglary. We shall say more about the particulars supporting the count of burglary later in this judgment. Count 2, going equipped for burglary, was left on the file on the usual terms.[2]A question then arose as to whether the appellant fell to be sentenced for repeated domestic burglary under the Powers of Criminal Courts (Sentencing) Act 2000, section 111. That section applies where a person is convicted of a domestic burglary, committed at a time when he was 18 or over and when he had been convicted in England and Wales of two other domestic burglaries. Despite submissions by the appellant to the contrary, the judge took the view that that would be an appropriate course. It was observed that if the appellant fell to be sentenced under section 111, he should have been sent to the Crown Court under section 51 of the Crime and Disorder Act 1988, whereas the magistrates had committed him to the Crown Court under section 6(2) of the Magistrates' Court Act 1980. The judge reconstituted the court and sat as a district judge pursuant to section 66 of the Courts Act 2003. He transferred the case to the Crown Court under the provisions of section 51. Having transferred the case to the Crown Court, he directed that there was no need for the appellant to be re-arraigned as he had already pleaded guilty. Applying the provisions of section 111 the judge sentenced the appellant to two-and-a-half years' imprisonment.[3]The appellant now appeals against sentence by leave of the single judge. We have been assisted today by Mr Greenwood on behalf of the appellant and by Miss Knight on behalf of the prosecution. Both appeared at the hearing before the judge in the Crown Court.[4]Mr Greenwood, in his notice of appeal and in a helpful skeleton argument, has advanced numerous objections to the course taken by the judge. As it seems to us, the first question which arises for consideration is whether - on the assumption that the procedural steps taken by the judge remedied any procedural problem - as a matter of substance, the judge was right to say that the appellant had pleaded guilty to the offence for which the judge proposed to sentence him.[5]Count 1 was in these terms:
"STATEMENT OF OFFENCE BURGLARY, contrary to section 9(1)(b) of the Theft Act 1968. PARTICULARS OF OFFENCE GARY MILLER, on the 2nd day of October 2009 having entered as a trespasser a building, namely Ty Porth Care Home, stole therein a laptop, money box with contents, Quicksilver bag and contents and two jackets."
[6]It will be seen that there is no distinct allegation that the building which the appellant had entered was a dwelling. That is important. Under section 9(3) of the Theft Act 1968, it is provided:
"A person guilty of burglary shall on conviction on indictment be liable to imprisonment for a term not exceeding- (a) where the offence was committed in respect of a building or part of a building which is a dwelling, fourteen years; (b) in any other case, ten years."
[7]In this regard the editors of Archbold Criminal Pleading Evidence and Practice 2010 state:
"Where the offence is committed in relation to a dwelling, this should be specified in particulars because of the higher maximum penalty."
[8]That proposition of law cannot in our view be doubted. It is plainly in accordance with the decision of the House of Lords in R v Courtie [1984] AC 463. That case concerned an offence under the Sexual Offences Act 1967. The punishment for the offence differed according to the existence or absence of particular factual ingredients. Lord Diplock, with whom Lords Fraser, Scarman, Roskill and Bridge agreed, held that the effect of a provision of that kind was to create separate and distinct defences with different factual ingredients, attracting different maximum punishments.[9]Miss Knight observed that Courtie concerned a sexual offence but had to accept that the approach taken by Lord Diplock was an approach of principle equally applicable to section 9 of the Theft Act 1968. She drew our attention to the language in section 111 which refers to "domestic". The judge, she reminded us, had not thought it was necessary to have the word "dwelling" in the particulars. We are not persuaded that the judge's view was a correct one. He had not been referred to Courtie and thus did not have the benefit of Lord Diplock's analysis.[10]The short question is whether, by his plea of guilty, the appellant admitted that the building or part of a building from which he had taken the material in question was a dwelling. True it is that the particulars gave the name of the building. It had a name which included the word "home" but it does not follow merely from the fact that a building has a particular name that the building itself is a dwelling, still less that the part of the building relevant for the purposes of the indictment was a dwelling. If the appellant had not admitted by his plea that the offence concerned a dwelling, then it does not seem to us that there is any basis for saying that he had admitted that it was "domestic" for the purposes of section 111.[11]We are thus forced to the conclusion that the judge sentenced this appellant on a wrong basis even if all the procedures which he went through were valid. It is not necessary for us to recite, nor to examine, the complaints made on behalf of the appellant as to the validity of those procedures.[12]The only question which remains is what the appropriate sentence would have been for the offence to which the appellant had indeed pleaded guilty, an offence of burglary but not a burglary committed in respect of a building or part of a building which is a dwelling. The judge's sentence, having been passed on a wrong basis, cannot stand. This was nonetheless a very serious matter.[13]The appellant was caught at the foot of a stairwell, which led to a residential room. He was born on 15 December 1980 and was thus aged 28 at the time of these offences. He had appeared before the Crown Court on 14 previous occasions for 24 offences between 1996 and 2009. He had previous appearances for burglary of a dwelling in 1996, 1997, 2001, 2000, 2005 and 2009. The current offence was committed while he was on licence for a sentence of 14 months' imprisonment imposed on 29 April 2009. He had been recalled. There was a letter from the applicant which was placed before the court. This expressed deep sorrow for what he had done. He explained that his sorrow was not because in his words, "I will spend the foreseeable future in prison", but for bringing shame and embarrassment on his family and letting them down as well as himself.[14]The explanation, although not an excuse, for what he had done had been a cycle of prison, crime and drugs and he described numerous attempts to free himself from that cycle, the present offence having occurred at a stage when he was suffering from withdrawal symptoms and started drinking alcohol in consequence.[15]Mr Greenwood accepts that the proximity of what happened in the present case to the part of the building in which the elderly residents of the care home dwelt is a serious aggravating factor. He suggested nonetheless that a sentence of 18 months after trial would have been appropriate, leading to a sentence of 12 months after credit for the plea of guilty. That, in our view, fails to reflect not only the proximity to the elderly residents of the care home but also the terrible record of offences that this appellant had accumulated.[16]Even making very substantial allowance for his attempts to free himself from the cycle of crime, prison and drugs, it is impossible, in our view, to conclude that after trial, the sentence could have been anything less than a period of 3 years. Allowing full credit for the plea of guilty, that means that the appropriate sentence in the present case is one of 2 years' imprisonment. We express the hope that this period of imprisonment, which will now take place with effect from the date that the judge passed sentence, may assist the appellant in what we hope is his continued resolve to free himself from the cycle that he has described.[17]The result is that this appeal against sentence is allowed. The sentence passed by the judge is quashed. In its place there will be a sentence of 2 years' imprisonment.

MR JUSTICE WALKER: Mr Greenwood, there is no direction under section 240?

[19]MR GREENWOOD: No my Lord.

Cited in 1 later judgment